Defense Loses Bid to Shift Killing Blame

By WILLIAM GLABERSON

Published: May 4, 1990

The judge in the Bensonhurst trial indicated yesterday that he would limit defense efforts to link the killing of Yusuf K. Hawkins to Gina Feliciano, the white girl who had invited black and Hispanic friends to the predominantly white neighborhood.

The indication came during a hearing about how the judge should describe to the jurors the legal rules governing the case when the jury begins deliberations next week. That explanation of the law - called the charge to the jury - is often the critical stage of a case because it defines the way jurors may view the evidence.

In one of several rulings favorable to the prosecution yesterday, the judge, Thaddeus E. Owens in State Supreme Court in Brooklyn, rejected an effort by a defense lawyer to have the judge describe Ms. Feliciano to the jurors as an accomplice in the black youth's death because of her role in the events that preceded the killing on the night of last Aug. 23.

The judge said Mr. Murphy's defense had been that Ms. Feliciano, one of the prosecution's main witnesses, ''caused the whole thing'' by telling one of the defendants and Mr. Murphy's client, Keith Mondello, that 25 black friends were on their way to the neighborhood to beat him up.

In another ruling, Justice Owens said he was likely to explain the law governing when it is justifiable to use deadly force. He said he would explain that to the jurors hearing the case against Mr. Mondello. He and a co-defendant, Joseph Fama, are being tried together but before separate juries.

Mr. Mondello is charged with being the leader of a group of about 40 whites who surrounded Mr. Hawkins, the 16-year-old who was shot to death. The ruling was important for the prosecution because lawyers on both sides agree there was no legal justification for anyone to shoot Mr. Hawkins, who was in the Brooklyn neighborhood to help a friend look for a used car.

The ''justification'' law says that a person has a duty to retreat if he can do so safely when faced with danger, and can use deadly physical force only when he reasonably believes that an attacker is about to use deadly force against him. Prosecutors charge that Mr. Fama fired four shots at Mr. Hawkins from a .32-caliber pistol.

Justice Owens said Mr. Mondello's lawyer, Mr. Murphy, had repeatedly suggested to the jury that Mr. Mondello and the other whites were justified in taking to the streets with bats.

Judge Suggests a Remedy

''Your client,'' the judge said, ''as well as all the rest of them, could have gone in their homes, locked their doors and called 911.''

There was, he added, ''no way in the world'' that the whites believed Mr. Hawkins was about to use deadly force against them.

Mr. Murphy said he opposed the judge's proposed explanation. He has argued, he said, that Mr. Mondello was justified only in arming himself against the people he believed were going to attack him. He said he had never argued the killing was justified.

Among other rulings that helped the prosecution, the judge said he would tell the jurors that they could consider Mr. Fama's flight after the shooting as evidence that he was conscious of his guilt.

Mr. Fama disappeared for eight days after the shooting before he surrendered to the police in upstate Oneonta, N.Y.

Justice Owens also reversed himself yesterday and said the prosecutors had submitted enough evidence to support the charge of intentional murder against Mr. Mondello.

Earlier, Justice Owens had expressed doubts about that charge in Mr. Mondello's case. Mr. Mondello and Mr. Fama were both indicted on two counts of second-degree murder for the killing of Mr. Hawkins.

One count is intentional murder, the other is murder with ''depraved indifference'' for human life. Each carries a sentence of 25 years to life.

Jury to Weigh Two Charges

Yesterday Justice Owens said he had studied the evidence submitted in the case and would allow the jury to consider the intentional-murder charge, along with the depraved-indifference one. Both charges will also be considered by the separate jury hearing the case against Mr. Fama.

Explaining his decision to retain the intentional-murder charge against Mr. Mondello, the judge cited testimony from Ms. Feliciano. She told the court that she had seen Mr. Mondello draw a pistol just before the shooting.

If the jury believes that testimony, Justice Owens said, it could support an intentional-murder conviction.

Justice Owens also said yesteray that he might instruct the jurors considering the case against Mr. Mondello that if they find him not guilty of murder, they may reduce the charges to manslaughter, which carries a shorter prison sentence.

Lighter Sentence Possible

A conviction for manslaughter in the first degree, with a potential sentence of up to 25 years, would require the jurors to find that Mr. Mondello intended to cause Mr. Hawkins serious physical injury but not death.

Prosecutors requested that the jurors be given the option of convicting on the ''lesser included'' offense of manslaughter in both the Mondello and the Fama cases, but the judge said he was likely to grant that request only in the Mondello case.

The trial was conducted before two separate juries because Mr. Mondello gave the police a statement the day after the shooting that identified Mr. Fama as the gunman. Under the law, that statement can be used against Mr. Fama only if Mr. Fama's lawyers have the opportunity to cross-examine his accuser, Mr. Mondello.